Criminal Justice Procedures

The following is a high-level guide to criminal justice procedures in Canada. For more information, check out our helpful links page or visit Justice BC‘s overview.

Use the sidebar to navigate between different events in a criminal case. This should give you a basic idea of typical proceedings and terminology. If you have any questions about your particular circumstances, or just need more information, don’t hesitate to contact Rishi Gill for a no fee initial consultation.

Police Investigation

The police are notified of an alleged crime that has occurred or they investigate a crime in process.

After assessing all the evidence, the police decide whether there is enough information to recommend charges be laid.

Report to Crown Counsel

After the police have completed their investigation they will forward their results to the Crown Counsel office. Crown Counsel has the ultimate authority in deciding if a charge will be laid.

Crown Counsel Assessment

Crown Counsel will review the results of the police investigation. If they feel there is sufficient evidence for a conviction and that there is a public interest in proceeding they will lay a criminal charge.

The nature of the offence will be assessed so that Crown is able to decide whether to proceed summarily (less serious crimes such as theft under 5000 dollars, simple assault) or indictably (more serious matters such as theft over 5000 dollars, aggravated assault, murder)

The maximum penalty for summary offences is generally not more than 6 months in jail or a fine.

Maximium penalties for indictable offences vary and can include life imprisonment. Some indictable offences may include minimum penalties of jail time.

An accused person may be arrested at the scene of the crime (i.e. during the crime in process or shortly after) or after the police have investigated the crime and Crown has approved charges.

If someone is arrested they can be released by the police or be required to appear before a judge in order to seek release from custody.

Sometimes an accused is not arrested at all. Instead, the accused may receive a summons in the mail or be given a Promise to Appear to court.

Bail

If, after arrest, the Crown seeks the accused’s detention in custody then a bail hearing will be held. At the bail hearing your lawyer will seek your release from custody. A judge may order you released on conditions or you may be detained in custody pending determination of your criminal charges.

They may be several court appearances before your trial. Generally, all accused appear for “first appearance court” where they are usually given the police report of the evidence against them. After review of the material they will come back to court and decide whether to plead guilty or not guilty.

If they plead guilty they will have sentencing hearing at some point.

If they plead not guilty a trial will be held. Trials may not occur until well after the offence (generally 3 months to one year on average, though some trials can take years to complete)

Once counsel has been retained and disclosure completed, the case is set for an arraignment hearing, the purpose of which is to determine whether the matter is set for trial or disposition (guilty plea), and to canvass issues, like the length of trial and what witnesses to be called. The arraignment reports, which are to be reviewed at the hearing, must be filed at least 7 days prior thereto. The court may request an accused to enter into a guilty plea or make an election under s. 536. At the conclusion of the hearing, a date for trial will be fixed based on the probable length and the convenience of counsel, the accused and witnesses.

No election: The trial is held before a Provincial Court judge with no preliminary inquiry.

Hybrid offense proceeded by way of summary conviction

No election: The trial is held before a Provincial Court judge with no preliminary inquiry.

Indictable offense or hybrid offense proceeded by way of indictment, other than ss. 469 or 553 offenses

The accused can elect to be tried by a

Provincial Court judge

Supreme Court judge without jury

Supreme Court judge with jury

If the accused does not elect, he/she is deemed to have elected to be tried by a Supreme Court judge with jury.

Under s. 568, the Attorney General may require the accused to be tried by a judge with jury unless the offense is punishable with imprisonment for 5 years or less. In this case, the accused’s election has no relevance.

S. 469 offenses

No election: The trial is held before a Supreme Court judge with jury.

S. 553 offenses

No election: The trial is held before a Provincial Court. Under ss. 555 and 561(a), the Provincial Court judge can turn the trial into a preliminary inquiry and the accused is deemed to have elected to be tried by a Supreme Court judge with jury. The discretion under ss. 555 and 561(a) are used sparingly.

Trial Confirmation

A trial confirmation hearing must occur not less than 30 days before a trial or a preliminary inquiry. Prior to the hearing, both Crown and defence counsel must file a Trial Readiness Report form, requiring them to certify that they are ready to proceed, to reveal their expectations in relation to certain applications, i.e. disclosure issues and Charter remedies, and the adequacy of the time reserved for trial.

Preliminary Inquiry

The purpose of a preliminary inquiry is to determine whether or not there is sufficient evidence to put the accused on trial. If there is sufficient evidence, the judge will order the accused to stand trial and, if not, the justice will order the accused be discharged. Another purpose of a preliminary inquiry is discovery by the accused of the case against him/her at trial, entitling him/her to cross-examine Crown witnesses. Crown counsel is not obliged to call all witnesses, and the justice may not direct Crown counsel to call particular witnesses.

The procedure of a preliminary inquiry is the same as that of a trial: witnesses are called by Crown counsel and are then cross-examined by the defence. Under s. 540(7), a justice may receive any evidence he/she deems credible and trustworthy in the circumstances, including a statement made by the witness in writing or otherwise recorded. Reasonable notice must be given for tendering a statement (s. 540(8)). On application, a party may require a witness to appear for examination or cross-examination on a statement. Evidence tendered pursuant to s. 540(7) cannot be read in at trial (s. 646). Once Crown witnesses have testified, the defence has the opportunity to call witnesses. When all of the evidence is presented, counsel have the opportunity to make submissions. The justice would decide whether to order the accused be discharged or to stand trial. A discharge at a preliminary inquiry lacks the finality of an acquittal and so, Crown counsel may lay new a new information.

The powers of the justice are limited at a preliminary inquiry. The justice cannot weigh evidence but can only determine whether or not there is evidence proving one or more element of an offense, failure of which will result in the discharge of the accused. Also, the justice cannot grant a Charter remedy even though cross-examination of police officers may expose Charter breaches.

Crown counsel may tender rebuttal evidence at the close of the defence case to rebut evidence adduced by defence counsel. It is important to note this is not an opportunity for Crown counsel to restate its case.

Once counsel are complete with their submissions, the judge would make findings of fact, consider the law and render a decision with reasons at a trial by judge alone. At a trial by jury, the judge would charge the jurors, who would then deliberate and render a verdict.

During the course of the trial, there may be “trials within a trial”, known as voir dire, where the admissibility of evidence is determined (i.e. voluntariness of the statements, Charter breaches, etc.).

Verdict

If you have plead not guilty and a trial is commenced you will be found either guilty or not guilty after all the evidence is heard.

If you are found not guilty your criminal matter is concluded and there is no further action required.

Depending on the offence, Crown may seek anything from a fine to jail.

Available sentences

Suspended sentence and probation order (s. 731): A suspended sentence may be imposed for an offence with no prescribed minimum penalty. The court may, having regard to the age and character of the accused, the nature of the offence and the circumstances surrounding its commission, suspend the passing of sentence and direct the accused to be released on conditions in a probation order. Both compulsory and optional conditions to be prescribed are set out in s. 732.1.

Fine (ss. 734, 735): The court may fine the offender (1) in addition to or in lieu of any sanction imposed for an offence that does not include a minimum term of imprisonment or (2) in addition to any other sanction for an offence that include a minimum term of imprisonment. The court may fine an offender only of it is satisfied that the offender has the ability to pay.

Discharge (s. 730): A discharge, absolute or conditional can be imposed for summary or indictable offenses provided that the offense (1) does not carry a minimum term of imprisonment, (2) is not punishable for 14 years or for life, (3) it is in the best interests of the accused, and (4) not contrary to the interests of the public. An absolute discharge is granted immediately with no terms or conditions in that there is no criminal record upon being sentenced. A conditional discharge means that the accused is put on probation with conditions for a period of time. If the accused complies with the conditions, the accused will have no criminal record at the end of the probation period.

Restitution: Before making any restitution order, the court must determine the exact amount and to be paid to whom. Restitution can be made as (1) part of a probation order (s. 732.1(3) (h)), or (2) a stand-alone order (s. 738). Under branch (1), the court must be satisfied that the accused has the ability to pay. Failure to pay can result in a breach of probation charge being laid. Under branch (2), the court can order restitution whether the accused is convicted or discharged, and whether at the court’s initiative or at Crown’s application. Under the second branch, the court may make this order even if the accused does not have the ability to pay at the time of sentencing such that the order that is not paid can be registered as a civil judgment, supporting the general deterrence principle.

Conditional Sentence (s. 742.1): If the court imposes a sentence of two years or less, the court may order that the offender serve the sentence in the community provided that (1) it is consistent with the fundamental purpose of sentencing, (2) the offence does not carry a minimum term of imprisonment, (3) the offence, punishable by way of indictment, does not carry a maximum term of 14 years, and (4) it is not an offence listed in sections (d), (e) and (f) of this provision. This is a jail sentence, which the accused serves in the community with conditions imposed to keep the accused out of jail. The conditions are similar to those in probation order; however, a curfew is almost always imposed. An accused who breaches a condition or commits a new crime may be ordered to complete the sentence in jail. Both the compulsory and optional conditions are listed in s. 742.3.

Imprisonment (jail)

Ancillary orders

DNA Orders

After an offender is convicted, Crown counsel may apply for a DNA sample of the accused to be taken.The court must make a DNA order if the accused is convicted or discharged of a “primary designated offense” in s. 487.04 (s. 487.51(1)). But the court is not required to make this order if it can be shown that the impact on the security and privacy of the accused is disproportionate to the public interest in the protection of the society and proper administration of justice.The court may make a DNA order if the accused is convicted or discharged of a “secondary designate offense” in s. 487.04 or found not criminally responsible by reason of mental disorder (s. 487.51(1) (b)). The court must consider the following: (1) the offender’s criminal record; (2) whether the offender was previously found not criminally responsible for a designated offense; (3) nature of the offense; (4) the circumstances surrounding the commission; and (5) the impact such an order would have on the accused’s security and privacy (s. 487.051(3)).

Firearms and weapons prohibition orders.

The court must make a mandatory prohibition order for offenses listed in s. 109 (i.e. an indictable offense in which violence was involved for which the person was sentenced to 10 years; a firearm offence; contravention of the CDSA; an offence involving firearm was committed at the time the offender was under a prohibitive order). The duration of the order is as follows: (1) for the first time offense – 10 years for non-prohibited/restricted firearm and for life for prohibited/restricted firearm; (2) for life for all firearms.The court may make a discretionary prohibition order under s. 110 (i.e. an offense where violence was involved other than those listed in s. 109; an offense involving firearm that was committed at the time when the accused was not under a prohibition order). The duration of the order ends not later than: (1) 10 years after release from imprisonment, or (2) if no imprisonment, then after the person’s conviction or discharge.Under s. 113, the court may lift the prohibitive orders if the accused requires a firearm or restricted weapon for hunting or employment purposes or that such an order would be a prohibition against the person against employment in the only vocation available to him/her.Under s. 114, the court may require the prohibited person to surrender anything firearm or restricted weapon in the prohibition order and the relevant licenses, certifications or authorizations.

Sex Offender Information Registration Act Orders:

The purpose of a SOIRA order is to help police services investigate crimes of a sexual nature. Crown counsel may apply to the court for an order requiring registration of an offender who is sentenced or found not criminally responsible by mental disorder for a designated offense listed in s. 490.011(1) (s. 490.012).A SOIRA order cannot be made for a “young person” under the Youth Criminal Justice Act unless he/she is given an adult sentence (s. 490.012(2)).The court is not required to make a SOIRA order if the offender applies for an “exception order” showing that the impact of such an order on his/her security or privacy would be grossly disproportionate to the public interest in protecting the society through effective investigation of crimes of a sexual nature (s. 490.012(4)). The offender may apply for a “termination order” to end a SOIRA order. Various time periods must pass before such an application can proceed (s.490.015).